Equipo Nizkor - Republic of Korea: Legislative Omissions with respect to Civilian Massacre during The Korean War.

Legislative Omissions with respect to Civilian Massacre during The Korean War

[15-1 KCCR 551, 2000Hun-Ma192, etc.,(consolidated), May 15, 2003]

Dismissed, on procedural grounds, constitutional complaint of the families of the victims seeking declaration that legislative omissions by the National Assembly for factfinding and compensation with respect to the civilian massacre committed by those presumed to be members of the Korean Army at Moongyung-Kun, North Gyungsang Province, and Hahmpyung-Kun, South Jeolla Province, during the period of the Korean War(June 1950 - July 1953), was unconstitutional.

A. Background of the Case

The complainants are the surviving heirs to the residents massa- cred by those presumed to be members of the Korean Army during the Korean War at Moongyung-Kun, North Gyungsang Province, and Hahmpyung-Kun, South Jeolla Province (hereinafter this incident is referred to as the 'civilian massacre'). The complainants had requested the government to conduct factfinding and compensation with respect to the above incident, but, no measure was taken by the government prior to the constitutional complaint.

The complainant thereupon filed a constitutional complaint in March and August of 2000 seeking declaration that such legislative omissions were unconstitutional, on the ground that the legislative omissions by the National Assembly failing to enact any special act for factfinding, restoration of reputation, and compensation with respect to the subject civilian massacre infringed upon the human dignity, the right to pursue happiness, the right to know, the right to seek compensation, and the right to equality, inter alia, of the complainants.

B. Summary of the Decision

The Constitutional Court, by a decision of eight out of nine Justices, dismissed the constitutional complaint in this case as lacking procedural requirements. The summary of the grounds therefor is stated in the following paragraphs.

(1) Summary of the Majority Opinion

(A) Legislative omissions can be subject matters of constitutional complaints only when the Constitution expressly delegates legislation by the National Assembly for the protection of basic right, but the National Assembly nonetheless fails to act pursuant thereto, or when it is clear through constitutional interpretation that the government is obligated to enact for the protection of basic rights of specific persons, but the legislators nonetheless fail to take any legislative measure therefor. Since the inaugural Constitution throughout the current Consti- tution, the Constitution of the Republic of Korea has delegated to the National Assembly to enact a state compensation act to compensate for damage caused by government officials, and the State Compensation Act, which is a general law concerning the state compensation enacted under the above delegation, has been in operation. However, the Constitution does not expressly delegate to enact a law such as a special act with respect to the subject civilian massacre in this case.

(B) The second provision of Article 10 of the Constitution provides that the "state shall recognize and guarantee the inviolable basic human rights." The state shall not infringe upon the basic rights of the citizens and shall protect such basic rights to the maximum degree. When the state unlawfully intrudes upon the basic rights of the citizens, the state is obligated to act in order to protect such basic rights.

However, as long as there are the investigatory system set forth in the Criminal Procedure Act and the state compensation system under the State Compensation Act, an additional state obligation to enact a law for factfinding and compensation concerning the incident at issue in this case is not generated by constitutional interpretation, as argued by the complainants. It would be desirable for the legisla- tors to enact a separate special law for factfinding and compensation under the legislative formative discretion considering the significance and specificity of damage caused by the civilian massacre and various objective circumstances that prohibited the victims in this case from timely requesting factfinding or compensation. However, such obligation to enact is not and cannot be derived through constitutional interpre- tation.

(C) The complainants argue that their right to equality is violated in that no law has been enacted with respect to the incident at issue in this case despite the enactment of special laws for factfinding and compensation with respect to similar incidents in other areas.

However, the precedent of the Constitutional Court is that the principle of equality of Article 11(1) of the Constitution does not constitutionally assign to the legislators any specific obligation to enact and that, instead, in case of enactment by the legislators of a law that is violative of the principle of equality, the party injured may dispute whether or not such statutory provisions violate the principle of equality. Therefore, the argument of the violation of right to equality in a constitutional complaint for legislative omissions as in this case is groundless.

(D) A constitutional complaint on the ground that legislative omis- sions of failing to enact a special law for factfinding and compensation with respect to the civilian massacre at issue in this case is uncon- stitutional is unjusticiable, apart from an affirmative constitutional complaint with respect to the incomplete statutory provision itself on the ground that an effective investigation may not be conducted and the right to seek compensation may not be properly exercised in such a special case as the civilian massacre by the state authority at issue in this case due to an excessively short or incomplete statute of limitations under the Criminal Procedure Act or request period under the State Compensation Act.

(2) Summary of the Dissenting Opinion In a situation of nonexistence of law where a special infringement upon the basic right caused by the state organization in the period of peril such as a war cannot be appropriately redressed by way of the normal system of law, an obligation arises for the National Assembly to enact a special law to guarantee the basic rights of the citizens. Such constitutional interpretation conforms to the spirit of the Constitution for the guarantee of the basic right.

In this case, the fact that many unarmed and innocent civilians were killed by those presumed to be members of the Korean Army in Moongyung and Hahmpyung during the period of the Korean War is acknowledged and confirmed. Although it was clearly an infringe- ment by the state organization of the basic rights of private indivi- duals, the state has attempted to cover up the case instead of trying to find the fact of the case or compensate for the harm caused. The victims even have acknowledgedly been deprived for a long period of time of an opportunity to raise their argument before the state. In such a circumstance, it is difficult to expect the victims to timely file a lawsuit against the state for restitution or compensation.

Especially in this case, the state under the obligation to protect its citizens is suspected to have killed, in an organized fashion, innocent civilians by way of military power during the war. If proven to be true, such conduct would be a genocide-like act and, as such, would duly be treated similarly to a genocide or treated as a crime against humanity.

Then, a normal system of law such as the statute of limitations under the State Compensation Act is not applicable in this case. In such a situation of nonexistence of law, a special obligation to enact law to redress (especially an obligation to effectively guarantee the right to request state compensation) arises for the National Assembly through constitutional interpretation based on the obligation to guarantee basic rights under the second provision of Article 10 of the Constitution.

15May03 - KOR

Legislative Omissions with respect to Civilian Massacre during The Korean War

[Source: Constitutional Court of Korea.]

Judicial Decision
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